from the that's-not-going-to-end-well dept

The W3C has been at the forefront of open standards and an open internet for many years, obviously. So it's somewhat distressing to see it announced this morning that the MPAA has now joined the group. After all, it was not that long ago that the MPAA flat out tried to break the open internet by imposing rules, via SOPA, that would have effectively harmed security protocols and basic DNS concepts. All because it refuses to update its business model at the pace of technology. The MPAA has never been about supporting open standards or an open and free internet. The W3C states that its "principles" are "web for all, web for everything" and that its vision is "web of consumers and authors, data and services, trust." The MPAA has basically been opposed to... well.... all of that. It has tried to take a consumer web of authors and turn it into a broadcast medium for major producers. It's tried to destroy trust, and put in place locks and keys.

In short, the MPAA has no place at all in the W3C. If there had been any indication that this was a shift in the MPAA's thinking, that actually would be interesting. If the MPAA had shown even the slightest indication that it was finally willing to embrace real internet principles and standards, and move Hollywood into the 21st century, that would be a good thing, and they should participate. But that's not what this is about, at all.

Instead, I fear that this is because of the stupid fight, which the W3C supports, to put DRM in HTML5. Tim Berners-Lee, who created the web and heads the W3C, has (for reasons that still don't make any sense) supported this dangerous proposal. Despite detailed explanations for why this is a bad idea, he has continued to defend the idea, which appears to go against nearly everything he's said in the past. Having the MPAA join the W3C is not encouraging at all.

Berners-Lee's support of DRM in HTML5 seems to be based on the short-sighted (and simply wrong) idea that the web needs the legacy entertainment industry more than the legacy entertainment industry needs the web. Building truly open standards that the world adopts will get the MPAA and others to come along eventually, because they'll realize they need to go where the people are, even if it isn't crippled with restrictions and locks. Bringing the MPAA into the process only continues to perpetuate this idea that we should be building a broadcast platform for the entertainment industry to push a message at consumers, rather than building a platform for creators of all kinds to communicate and share.

from the setting-it-up-as-a-fight dept

As Congress kicked off its latest effort towards comprehensive copyright reform, I noted some talking points that raised a really big concern: many in Congress appeared to suggest that copyright reform was a fight between "content creators" and "technology companies" and that any eventual result would be a balance between what those two sides were squabbling for. This is very concerning for a variety of reasons. First off, neither of those groups should be the primary concern of lawmakers. The Constitutional mandate for Congress when it comes to copyright is to "promote the progress of science" (the useful arts stuff is about patents...). The key beneficiaries are to be the public.

So, the first concern, obviously, is that if the focus is on "content creators" on one side and "the tech industry" on the other, the public is not represented. That's a really bad idea. The second problem with setting it up as a battle between those two sides is that it suggests that what's good for one side is bad for the other, and this is a push and pull whereby when one side wins something, the other loses, and the "ideal" result is one where both have to compromise. Thus, you get talk about how copyright law needs to "balance" the interests of "both sides." Again, this ignores that there are a lot more than "two" sides here, but more importantly it ignores the idea that this is not a zero sum game.

The history of the tech and content industries shows that -- while they often squabble about things -- success goes hand in hand. Each and every major innovation from the tech world has resulted in greater opportunity for content creators. It's getting old to say this over and over and over again, but a mere four years after Jack Valenti told Congress that the VCR would be "the Boston Strangler" to the movie industry, home video sales for Hollywood were bigger than box office sales. Technology isn't anti-content creator -- it opens up new and greater opportunities. The focus shouldn't be on figuring out who has to "give up" what for "balance" but to seek out a scenario that is more likely to increase the opportunity for everyone (whether or not everyone grasps the opportunity may be a different story).

Thus, the key focus should be on what kinds of things should be in any copyright reform proposal that will "promote the progress" by building up those opportunities for everyone -- increasing innovation, not locking it down. That means bringing together everyone to figure out how they can help each other and the public -- not dividing them up and putting them on certain "teams."

But... this is Congress. And that's not how Congress works.

Instead, we're getting two separate hearings, one about how awesome copyright is, and another about how awesome technology is. As if those two things are in conflict.

Congress needs a fight between "this side" and "that side," preferably with each side involving giant multinational companies with giant lobbying budgets. Because, when you have a fight like that, both sides ramp up their donations to Congress to make sure "their side" is heard. Congress loves to set up fights between two big wealthy industries, because that just means more money for them. This is also why this won't be resolved any time soon (the longer you drag it out, the more money pours in).

So, it should come as no surprise at all that the next two hearings that the "Intellectual Subcommittee" have called are designed not to move the ball forward on real copyright reform, but rather to set up the "two sides" in the war. First up, next week, there will be a hearing on "Innovation in America: The Role of Copyrights." The following week? Same thing, but "the role of technology" (official title hasn't been released yet, as far as I can tell, but I've seen a few variations floating around, that basically just involve substituting "technology" for "copyrights") -- as if technology is inherently "anti-copyright."

The end result will be lots of home team cheering from people who solidly identify with one side or the other, coupled with ragging on "the other side." But there will be little or nothing to actually look at how those two "sides," along with many others, can come together to best serve the public benefit in terms of furthering the incentives to have important cultural and intellectual works created, experienced and shared.

from the some-starting-points dept

I watched a large part of the House Subcommittee on Intellectual Property's first hearing on copyright reform, and came away somewhat disappointed. While the panelists presented a variety of interesting viewpoints and worked hard to highlight areas of agreement, many of the Congressional Representatives were clearly confused about the law, the Constitution and the nature of the debate itself. I came away with a few key concerns, but also with some ideas for a framework that any debate on copyright should necessarily take. First up, the concerns:

Too many Representatives flat out mis-stated what the Constitution says. They said that the copyright is "guaranteed by the Constitution" or that their Congressional mandate is to protect science and art. Neither is true. The Copyright Clause of the Constitution grants Congress the power to issue "exclusive rights" for the sake of promoting the progress of science and the useful arts. That is, it was never about "protecting" but about "promoting the progress." Those are very different things. For that matter, it had nothing to do with creative works, for the most part. If we go by the originalist mandate, "science" was the part that copyright was about, and it meant "learning." The framers of the Constitution were focused on promoting learning and education via copyright, not a specific entertainment business. That it does that now is fine, but don't claim that the Constitution says that Congress must "protect" the entertainment industry. Because it says no such thing. After all, that same section grants Congress the power to grant letters of marque to privateering ships to seize foreign ships. If copyright is guaranteed by the Constitution, then so would the right to demand your right to a letter of marque.

Too many representatives continued to set this up as a battle between "content creators" and "the tech industry." This is dangerously misleading. In fact, at one point, Rep. Deutch flat out said that any copyright reform must carefully benefit "creators and the tech industry, as if those were the only two stakeholders. The real stakeholders of copyright law, however, have always been the public, who were barely mentioned at all in the hearing. Or, when they were mentioned, it was often with the somewhat disparaging term "users."

Finally, the myth that "everyone just wants stuff for free" was brought up a few times, in an effort to defend the idea that greater enforcement is a necessity. Except, that's not true. As we've seen over and over again, consumers are actually spending more today on entertainment than ever before, according to the Bureau of Labor Statistics. And tons of studies have shown that the biggest infringers also tend to be the biggest spenders. You don't make good policy based on catchy myths, and this one is a myth. It should be stricken from the debate as false. And, I won't even bother with the one comment from Rep. Poe that "copyright won the cold war." Where do we get these people?

Given all that, if we wanted to look honestly at copyright reform, it needs to start from a few basic principles. Here are a few preliminary thoughts on a potential framework for discussing these things.

Pretty much everyone is both a content creator and a content consumer. Over and over again we heard about concerns of certain creators as if they were a separate class of people unrelated to the wider public. That's silly. Especially as we have copyright law today -- in which every piece of creative content is immediately covered by copyright at the moment the expression is set in fixed form -- we are all creators. Nearly every email you write is probably covered by copyright. Every creator is also a consumer of content, and that includes professional creators. Professional content creation often involves building off of the influences of other works. We should support that as well. Otherwise, we begin to treat copyright as a sort of welfare program for professional creators, which is never what it was intended to be.

Technology is just a tool. It is neither a competitor to, nor an enemy of, content creators. With so many Representatives setting up the debate as "content vs. technology," we start to go down a very dangerous and distorted path that has little to do with reality. As a tool, technology certainly can create challenges for existing and traditional business models, but also tremendous opportunity. Look at the success of platforms like Kickstarter today. Would anyone seriously argue that the "technology" company Kickstarter is "anti" creator? Similarly, we're seeing more and more artists succeed by embracing new technology platforms that enable them to do amazing things: Bandcamp, TopSpin, BandZoogle, ReverbNation, SongKick, Dropbox, SoundCloud, Netflix, YouTube, Facebook, Twitter, HumbleBundle -- and many, many, many more. The list literally goes on and on and on. These are the tools that so many content creators are embracing today to help them to be better able to create, to promote, to distribute, to connect and to monetize their works than ever before. To argue that this is tech vs. content, when the tech companies seem to be handing content creators the most useful tools they've ever had to be successful, seems ridiculous.

Every legislative choice has costs and benefits. Too often, it seems like those pushing a certain proposal like to only look at one side of that equation. If we're to have an effective debate over copyright reform, it should include an upfront look at the costs and the benefits, the conditions and the consequences of various decisions across the board on the public. The purpose of copyright law, explicitly, is to promote the progress. We should be weighing carefully whether or not each change really would promote progress of science and the useful arts.

Decisions need to be made based on empirical data. As we've discussed in the past, historically, copyright reform discussions have been almost entirely faith-based. This is why the claims of "everyone just wants stuff for free" are so concerning," since the data suggests that's not even close to true. Given the recent call for objective research that would be useful in the copyright debate, by the US National Research Council, I'm hopeful that we'll actually begin to see some useful data for this discussion. Hopefully those in Congress will actually pay attention to the data, rather than continue to insist that blatantly false claims must be true.

Finally, and most importantly, the focus needs to remain on promoting the progress of science and the useful arts. It's not about "protecting" any industry or any class. It's about what most helps to promote overall progress. Each proposal should be judged on that standard.

While it may be difficult, I think that if any discussion on copyright reform begins with those basic principles, it could end up being quite useful and informative.

from the false-dilemma dept

James Gannon, a Canadian IP lawyer who works closely with the recording industry, recently put up a post on Facebook in which he tries to separate the world out into consumers who want freedom and creators who want control. The problem is that this is a totally false dichotomy. These aren't two separate groups. Most people are both creators and consumers at the same time. The lines separating the two are also somewhat porous and meaningless. Yet, by setting up this fake "us vs. them" dichotomy, Gannon can effectively brush aside those who are against things like DRM as simply not appreciating art and to appeal to everyone's innate desire to be creative and artistic to make them feel like being against DRM is somehow dirty. Let's dig in a bit:

People who oppose protection for digital locks tend to see art and culture in the same light as they see mass-produced consumer goods.

Note how Gannon lumps together all of the folks who don't like digital locks and tries to "classify" them. And he does so in a way that makes them sound like Philistines. They look down on art. It's just a "mass-produced consumer good." Except, of course, that's not even close to true. Many of those opposed to laws giving overriding control to digital locks are content creators ourselves, who deeply value creativity and the content creation process. We just realize that digital locks often get in the way of that process. Gannon then goes on to basically repeat his first sentence over and over again in different forms, all with the intent of suggesting that people who don't like digital locks don't get art. They're boring engineers who like to (gasp!) tinker with things.

Artists tend to disagree with this view. Most musicians think their of their albums as more than a collection of grooves on a plastic disc. It's art, and it's an important part of our culture.

Ah, and here is the pure and beautiful artist, living above such petty worldly concerns about technology and how things work.

The problem, of course, is that these two "groups" are works of fiction. The simple fact is that almost everyone today is both a creator and a consumer, often at the same time. In fact, almost everyone I know who is seriously against DRM or mandating digital locks is a well-established content creator. But, at the same time, they're also vast "consumers" of content as well. That's because the best way to be a content creator is to also joyfully consume what others are doing -- to experience that overall culture and (perhaps, sometimes) to gain inspiration, motivation and revelation from those works. Pretending these are two separate groups of people does a disservice to the actual issues at play.

I can't think of anyone I know who is against DRM who looks at art as just some piece of plastic or "a toaster" as Gannon claims. Instead, I tend to see the opposite. I see people of all kinds who find inspiration from that creative work and want to share that inspiration with others, and build a cultural connections around those works. If the people against DRM didn't value the artwork itself, this wouldn't be an issue, because they wouldn't care so much.

The idea for copyright came out of that second line of thinking.

Well, no, actually, it didn't. The idea for copyright came from an attempt to actually grant more power to middlemen to limit certain forms of creativity. Gannon, it appears, is not familiar with the history of copyright. Of course, more modern copyright law was designed to "promote progress" for society as a whole. That still has nothing to do with recognizing the beauty of art over plastic goods and toasters. Copyright was never intended to be a one-sided tool for artists, but it was designed to benefit society as a whole. In fact, early copyright laws focused on improved learning and education, and often left out such wasteful things as pure artwork.

Quite honestly, people in that first group will probably never understand or support the notion of digital locks because they essentially don't see the point of any copyright at all. To them, an artist asking them not to copy their CD is no different than Ford telling them not to put their car in reverse.

No. It is not because we see it as no different from Ford trying to stop us from going in reverse, but because we recognize how it's actually limiting art and creativity, by limiting the cultural relevance and the ability to be inspired and to build off of that inspiration.

The idea of restrictions, any restrictions, on their use of something they bought is an unrivalled affront to their rights as consumers.

No, it's an unrivaled affront to the ability to create and build and share and experience culture which we appreciate and love.

Digital locks were developed as a response to this phenomenon. As more technologies were developed that allowed people to copy works on a massive scale, publishers, large and small, started coming out with digital locks to protect their artists' works and prevent unauthorized uses of their art.

Except, of course, this ignores the truth. Digital locks have never worked and will never work. They did absolutely nothing to "protect the artists' works" or to prevent unauthorized uses of their work. That's because once the lock was picked -- and it always gets picked -- it was available to everyone. What digital locks actually do harm, are the many legitimate users of that content who experience it and wish to do more with it, including building shared cultural experiences around it.

Remember, if there's one thing they hate, it's an artist who tries to control how her art might be used.

Uh, no. No one hates an artist because they try to control their work. They hate it when they are unable to actually do something useful or valuable with a piece of artwork, such as building their own artwork.

The laws you've been hearing about actually don't really concern themselves directly with digital locks themselves. Rather, it's those other technologies, the hacks and the cracks, that the government's bill is trying to outlaw. Just like copyright law makes it illegal to copy or modify a creative work, the bill would make it illegal to hack the digital locks that an artist may use to protect these rights.

If that were really the case, then the law would allow for exemptions for cases of fair use/fair dealing or when the circumvention occurs for totally non-infringing reason (such as archiving, transformative uses, security purposes, etc.).

It all comes back to the art-as-a-toaster point of view: laws that prevent people from doing whatever they want with creative works they purchased are fundamentally wrong, no exception.

Well, yes, laws that prevent people from doing things like that are fundamentally wrong. But it's not because of any "art-as-a-toaster" viewpoint. It's the opposite. It's because content creators know that they are both creators and consumers, and when part of that overall process is blocked, it harms the creativity side quite a bit.

So, what kind of consumer or creative works do you consider yourselves to be? Should artists be able to retain some control on how their works are copied or modified, even once they're sold?

And this is the crux of the article. He sets up this "beautiful pure artist vs. philistine tinkerer consumer" myth to make people identify with art, because, really, who doesn't love art? But, that very point is the reason why Gannon is so very, very wrong. Presenting those who are opposed to digital locks as being unappreciative of art has it backwards. If they didn't appreciate and value the art this wouldn't be an issue. They wouldn't care, because they wouldn't value it enough to care. They'd be off doing something else.

It's a shame that the recording industry and its lawyers want to turn this into an us vs. them situation. It's not. Plenty of people want to create a situation where there are wider opportunities for everyone acting as both creators and consumers, to really allow creativity to flourish. But you don't do that by locking up creativity and pretending that many of those creators don't appreciate art.

from the not-that-I-can-see dept

Martin Bosworth has written up a longish post discussing what he calls "The Creative Class War." It's an interesting read that hits on a lot of different points, many of which I agree with, and a few I don't agree with, but it's worth reading anyway, if only to be horrified by the news of a novel that apparently spends a few chapters following an "intellectual-property enforcer who literally tortures and dissects copyright infringers to death." Yikes.

There's too much in the post to respond to each of the points -- either the ones I agree with or disagree with -- but there was one concept that is part of the root of the argument which I simply don't believe is true, even though I've heard others say it as well. It's the idea that the views held by many people criticizing rights holders for being overly aggressive in enforcing their rights comes from some sort of "resentment" of content creators. Bosworth notes:

There's a long-simmering resentment of people that actually make art, and the Internet has brought it to the surface in a way we've never seen before.

I have to say that I just don't see this. It's an argument we've seen thrown out by various people who disagree with us at times ("you just say that because you've never created anything of value in your life!") but it doesn't ring true at all. First of all, many of us who fall on the side of often being critical of overly aggressive copyright enforcement are critical because we think that it will backfire and harm those that the law is supposed to "protect." The point of highlighting why it's a bad idea isn't that we resent those who did something creative, but because we want to see them succeed and making an anti-fan, anti-consumer decision will make that more difficult. It's not resentment at all.

Coming at the same question from the other direction, again, I have trouble seeing "resentment" as the issue at all. When we look at the success stories, the one thing that comes through loud and clear is that respecting fans results in those fans becoming incredibly loyal. They're loyal to a fault, in fact. There's no resentment there at all. If anything, at times, it seems to border on hero worship.

I'm not denying that there is some resentment out there of successful people. There are always some people who are resentful of others, but I just don't see that as a driving force in the criticism of content creators who choose a path that is anti-fan.

Update: Wow. So it turns out that Martin, who wrote the post above and sent it to me on Tuesday (and promised to write more on the subject) actually passed away on Wednesday. I'm really sorry to hear that. Very tragic.

from the what's-original? dept

A few people have directed my attention to copyright lawyer Mark Fischer's review of Larry Lessig's most recent book, Remix. The review is worth reading -- and there are some points on which I agree with Fischer -- particularly with the near impossibility of separating commercial use from non-commercial use. While Fischer seems sympathetic to the idea that there are some problems with copyright law, he keeps going back to one central idea that is the core of his problem with Lessig's book: that allowing others to remix content without getting permission potentially harms the "original creator."

This is a myth that is all too often found in IP law -- both in patents and in copyrights. This concept of the "original creator" of a piece of work. All works are built on those that came before. All works are inspired by and use bits and pieces of what they've learned or what they've seen, heard and felt. Pretending that there is a true original creator who deserves credit, money or control is a problem -- because it means no new creative works could be done without getting permission. That would be a tremendous hindrance on creation -- rather than progress (as the Constitution intends).

But because of this false belief in an original creator, Fischer creates some tradeoffs that don't really occur. Specifically, he notes:

If we move toward making content free for copying, distribution and remixing, the professional creators and their distributors will have an even tougher future. Erosion of the copyright system comes at a price. If we have to choose between encouraging original creativity and remixing, why not err on the side of encouraging the originators?

There are multiple problems with this statement. It makes the assumption that allowing free copying of your works makes it harder to earn money. Yet, that's not what we're seeing at all. Those who put in place smart business models have found that it's even easier to make make a lot more money than in the previous method. Erosion of the copyright system does not come at a price. It merely changes the business model around, and opens up tremendous new opportunities. And that's for everyone because it makes the process of building on the works of others easier -- and since all creativity really does come from building on the works of others, then creativity has the ability to flourish.

So, let's get rid of this myth that there's some "original content creator" and that said "original content creator" needs to be "protected." Neither point is true. Every content creator is building on the works of others, and there are plenty of business models that can be put in place easily that don't require "protection" at all. It may be more difficult for someone who makes their living helping enforce those protections to see it, but we're seeing it every day. Why block off all those innovative new content creators just because of a couple of myths?